Surrogacy and modern families – calls for increased regulation and extended parental order deadlines

31 July 2014

I attended the Association of Lawyers for Children Conference last week, “Modern Families in Modern Britain: Is law keeping pace with medical and research advances?”

What a thought provoking day it was. The conference started with a fascinating and informative keynote speech from Mrs Justice Theis who took us through the vast changes we have seen in the structure of family relationships from the 1970s to date and how the Family Court has grappled with the legal issues involved. She also gave us an insight and her own thoughts about how things may develop over the coming years.

The conference included presentations from a leading IVF consultant, a fellow surrogacy lawyer, a human rights barrister, a research psychologist with expertise in lesbian & gay parenting and the director of research at BAAF (the British Association for Adoption and Fostering). A varied discussion was had, with views from the point of view of adoption, donor conception, same sex parenting and surrogacy.

Key themes and challenges

From the conference, the key themes and challenges that stood out for us and which we increasingly encounter in working with intended parents in surrogacy cases were:

Regulation

Much of the discussion during the day was around surrogacy and the need for both reform of the current laws in the UK as well as an international convention to regulate the industry (as discussed in our blog on “International surrogacy laws are not keeping up with changing social patterns”). In a recent judgment of Mr Justice Moylan in the High Court, the Judge expressed a similar view:

“There is, in my view, a compelling need for a uniform system of regulation to be created by an international instrument in order to make available an appropriate structure in respect of what can only be described as the surrogacy market.”

6 months parental order deadline

One of the conditions for making a parental order in a surrogacy situation is that the application must be made within 6 months of a child’s birth. It has never been clear to surrogacy lawyers why this deadline is imposed and there was discussion about allowing Judge’s some discretion to extend the time limit for parents who haven’t made the application in the time limit. We hope this will happen sooner rather than later, to ensure a secure legal footing for all children born of surrogacy arrangements.

Increased requirement for parental orders

There may well be difficulties in the future for parents who have not applied for parental orders following surrogacy arrangements; when they come to renew passports, the passport office is starting to ask questions and to ask for a copy of the parental order. If parents do not have parental responsibility, they could find themselves in real difficulties applying for and to renew a child’s passport. Families who have gone through an international surrogacy process are often understandably focussed on obtaining a British passport as quickly as possible so their child can come to the UK. The parental order can seem like a secondary concern and this can be complicated by the delay in returning to the UK which can sometimes exceed the six month window for a parental order application. It is vital for families to think early about both the family and immigration issues. We are able to help manage both processes for clients so that they don’t sacrifice their opportunity to obtain a parental order while going through the often lengthy and frustrating process of applying for an initial child passport.

​Further information

For further information on international surrogacy law, please see our services page on this subject and feel free to contact us.